Obama’s ’Abuse of Power’ Is Hardly Unprecedented

By Stephen L. Carter -
Oct 20, 2013

A leading Republican complaint
during the partial government shutdown was that President Barack Obama had delayed implementation of the Affordable Care Act for
businesses but not individuals. Many party strategists argued
that its protest should have been focused on delaying rather
than defunding the law.

I am skeptical that this would have turned the political
drama to Republican advantage. What is more intriguing to me as
a scholar is the charge that Obama, in giving businesses an
extra year to prepare, defied the language of the statute and
acted beyond the powers of the presidency.

Critics have contended that the president’s unilateral
reinterpretation of the statute was an unprecedented abuse of
power. Supporters have said it was unremarkable and hardly
unprecedented, citing President John Kennedy’s executive orders
on civil rights.

In this case, history is on Obama’s side. In point of fact,
Kennedy’s executive-order activism was even broader than Obama’s
defenders have noted -- much of it without any explicit
statutory sanction, and some of it in the teeth of congressional
intention.

‘Fullest Powers’

During the 1960 campaign, Kennedy promised to be more
active on civil rights than Dwight Eisenhower had been -- even
in the absence of enabling legislation. The president, said the
young senator, “must be prepared to exercise the fullest powers
of his office -- all that are specified and some that are not.”
Among those who agreed was Martin Luther King Jr.: “The power
inherent in executive orders has never been exploited; its use
in recent years has been microscopic in scope and tepid in
conception.”

Kennedy’s most famous executive order, issued just weeks
after his inauguration, was Executive Order 10925, which
required federal contractors to “take affirmative action to
ensure that applicants are employed, and that employees are
treated during employment, without regard to their race, creed,
color, or national origin.”

As the political scientist Kenneth R. Mayer notes in his
book “With the Stroke of a Pen: Executive Orders and
Presidential Power,” however, 10925 was the easy one. Broad
executive authority over the contracting process at least rested
on firm precedent. Elsewhere, Kennedy took time to get moving.
Once he started, however, he acted dramatically.

Kennedy’s most creative use of his implied powers to push
the cause of civil rights was Executive Order 11063, issued in
November 1962. It commanded all federal agencies to take
measures to end racial discrimination in housing that was owned
or operated by the federal government or built or purchased with
federal aid.

Nowadays, such an order would win widespread applause. At
the time it was issued, 11063 faced a problem: It entirely
lacked a plausible statutory basis.

Kennedy presented the order as an interpretation of the
National Housing Act of 1949, signed by Harry Truman. Mayer
points out that both Truman and Eisenhower had resisted
pressures to issue an order similar to 11063, perhaps because
the statute contained no nondiscrimination provision. On the
contrary: Congress had considered and rejected such an
amendment, both in debating the 1949 act and in subsequent
years.

Kennedy rested 11063, rather dubiously, on the language of
the statute’s preamble, which stated the congressional intention
of assuring “a decent home and suitable living environment for
every American family.” But discrimination, Kennedy argued,
frustrates that goal, by channeling black families into
“substandard, unsafe, unsanitary, and overcrowded housing.”

Civil-rights advocates celebrated the issuance of Executive
Order 11063, and immediately set about demanding broader
presidential orders. As the president’s critics pointed out,
however, he was citing the 1949 act as authority for achieving
exactly the opposite of Congress’s intention.

Secret Meetings

Many of Kennedy’s executive orders were the brainchildren
of his Sub-Cabinet Group on Civil Rights, which met regularly,
usually at the White House, and almost always in secret. “That
way,” one historian has written, “the activities of the group
would remain beyond the gaze of southern lawmakers and
administration conservatives.”

The Sub-Cabinet Group (of which my late father was a
member) reviewed the activities of almost every federal
department, looking for ways the administration could, through
orders from the White House or even a cabinet secretary, advance
the cause of civil rights.

One of the group’s early initiatives was to forbid a
traditional practice under which the military police would
escort black soldiers out of segregated restaurants in the
South. Another was to ban Ku Klux Klan signs from the shoulders
of federally funded highways. Washrooms and cafeterias in
federal buildings in the South were desegregated. Federal
officials were prohibited from addressing racially segregated
audiences. And the owners of the Washington Redskins -- the last
professional football team without black players -- were quietly
informed that unless the team integrated, they would no longer
be allowed to use D.C. Stadium. The next year the team brought
in three black players.

In most cases, the statutory authority for the order was
unclear or simply nonexistent. Some of the initiatives -- such
as the ban on Klan messages -- were probably unconstitutional.
Kennedy pressed them anyway.

Competing Priorities

This shouldn’t be taken as more Camelot hagiography.
Kennedy’s dedication to civil rights was, to say the least,
uneven. Sometimes the reason was competing priorities. This
explains, for example, his response to the priest Theodore Hesburgh’s complaint in 1961 about segregation in the Alabama
National Guard, as quoted by Kennedy biographer Robert Dallek:
“Look, Father, I may have to send the Alabama National Guard to
Berlin tomorrow and I don’t want to do it in the middle of a
revolution at home.” Kennedy assumed, Dallek writes, “that
openly and aggressively committing himself to equal rights for
black Americans would somehow undermine his pursuit of world
peace.”

Still, Kennedy did issue his executive orders,
notwithstanding their shaky legal basis. And Mayer lists many
other examples of presidents wielding their authority to defy
the expressed will of Congress. One of my favorites is William Howard Taft’s issuance of an executive order in 1912 requiring
all department heads to submit their budget requests to the
White House -- an order that came immediately after Congress had
enacted legislation prohibiting department heads from preparing
budgets except at the request of Congress.

I’m not saying that all this presidential unilateralism is
a good thing. But it’s a considerable overstatement to call
Obama’s use of executive authority unprecedented. In the end,
the battle over the Affordable Care Act will have to be fought,
if at all, on the merits -- not over whether the president has
reinterpreted a law in ways that Congress never intended. For
better or worse, presidents do that all the time.

(Stephen L. Carter is a Bloomberg View columnist and a
professor of law at Yale University. He is the author of “The
Violence of Peace: America’s Wars in the Age of Obama” and the
novel “The Impeachment of Abraham Lincoln.” Follow him on
Twitter at @StepCarter.)

To contact the writer of this article:
Stephen L. Carter at stephen.carter@yale.edu.